A Conversation with Duncan Kennedy

The recently published volume 10 of Unbound: Harvard Journal of the Legal Left reflects on the career of Duncan Kennedy, Carter Professor of General Jurisprudence, Emeritus at Harvard Law School and a leading figure in the US Critical Legal Studies movement. The follow is an excerpt from a much longer interview included in that volume. The full interview is available on the Unbound site.

The first Critical Legal Studies Conference was in 1977. How did that come about?

In the fall of 1976, David Trubek had a dinner to try and figure out if this was a moment to put together various left, or genuinely progressive, academics to have a meeting. I had been Trubek’s student at Yale, but by this time we were close friends, and as was true with Morty and Roberto and Karl at the time, we trusted each other’s political instincts. We decided we would hold the meeting in Madison because David was by then a professor at the University of Wisconsin and he could get money from the law school. Then we decided on a list of people we would ask to be on the letterhead of the call to the meeting, and I drafted the letter and Mark Tushnet, who was at Wisconsin and the co-host, agreed to sign it.

Who did you end up inviting?

There were three main groups. First were the legal sociologists. Trubek was involved in the Law and Society Association—the American sociology of law network. It’s an interdisciplinary network: law professors and social scientists, most of them progressives. The big guns were Lawrence Friedman, Marc Galanter and Stewart Macaulay. And also Willard Hurst, who was a generation older. Trubek was aligned with them—they all had connections to the University of Wisconsin faculty. They understood themselves as representing social theory: they’d read Weber and all thought they’ve read a little Marx, although most of them had never taken him at all seriously—in the anti-Communist universe of their generation, nobody really read Marx.

Then there was the Harvard network. Neither Unger nor Horwitz could come in the end. But there were a number of our present or former students: Mark Kelman, Karl Klare, Kathy Stone, Joe Singer, Lucie White.

And finally there were the Yale people, many my friends from law school who had gone onto become law professors, people like Mark Tushnet, Rand Rosenblatt, and Ann Freedman. There were also Peter Gabel and his friend Alan Freeman, both of whom would become central to the movement but were just getting to know the group.

How much theoretical and political coherence was there to this coalition?

The legal sociologists, social-theory-oriented progressives, represented an older generation. They also had a very professional understanding of the sociology of law: they understood themselves to be distinguished members of the academic profession of sociology. So although they wrote about law, they preferred books to law review articles, disdained mainstream legal academics as formalists, and wanted to be respected by sociologists. Weber and Durkheim were the overwhelming theoretical influences.

Within our generation—including our students—the divide was between the Marxists and non-Marxists. The Marxist strand was represented by Kathy Stone and Karl Klare, who saw themselves as having a strong Marxist background, and Rand Rosenblatt and Mark Tushnet. Someone like Mark Kelman, in contrast, was a much more cultural, completely anti-Marxist, radical.

Of course not everyone was either a Marxist or a non-Marxist. There were also people in between who had a complex or ambivalent relationship to Marxism. That includes me, as I explained a minute ago. We were anti-dogmatic New Leftists radicals, nonetheless obsessed with theory.

These generational and political differences were, in the end, too great. Certainly no one associates the legal sociologists with Critical Legal Studies.

Mark Tushnet was the spokesman for the Marxists and he gave a speech at the end of the first day in which he said no serious theory of law is possible without the labour theory of value. When Mark made the speech there were only about 35 people in the room, but you could see just about a million different expressions. This is what provoked Galanter, Macaulay and Friedman to basically walk out. They didn’t actually walk out; they just didn’t come back for the remaining sessions.

So the original coalition formation was fractured from the first day, and at the end of the conference it was clear that Trubek couldn’t deliver the sociologists. That wasn’t his fault. But we would have been an infinitely more respectable and plausible movement than we became had we managed to ally with them.

Was this a coalition that you were desperately trying to hold together?

My attitude was that if it could be prolonged, that would be great. What that meant was if they could accept our radicalism, then we could have an alliance; if they could deal with us, we could deal with them. For people of their generation, a liberal intelligentsia who hated radicals, it would have been a major accomplishment and it’s no surprise they couldn’t manage it. I don’t hold it against them and I didn’t at the time. If you have this generational concept, you can’t really complain when they act like the other members of their generation, just like we were acting—Mark Tushnet’s gesture was a perfect example of 60s stuff: he basically gave them the finger.

The younger generation were no more convinced by Mark than the older generation. It was by then an old-time idea, the labour theory of value. Most of us were reading and thinking about Marx a lot, but nobody believed in that way of understanding the theory. Still, Mark’s talk was great. It was still the world of red-baiting, so to do it took real courage, even if politically it was totally misguided and actually absurd.

Given your allergy to the labour theory of value, was your feeling towards Mark and the other Marxists the same as towards the liberals: we’ll have them if they’ll have us? Or were you more sympathetic to the Marxists?

Much more sympathetic. Mark actually abandoned the labour theory of value soon thereafter. They were my buddies—they mocked me and I mocked them, but we were completely aligned.

What was the organisational structure of CLS?

We were committed to anti-organisational lines. The idea was that it was a network not an organisation. We were representative of the New Left reaction against the party-building groups. The basic organisational strategy of CLS was no formal organisation except for an annual conference and an occasional summer camp.

The annual conference was simply in the hands of a young professor at a law school who was willing to put in the time and energy to organise it—Karl Klare, Peter Gabel, Alan Freeman, me, Jay Fineman, Gary Peller, Jamie Boyle, to name a few. The organiser put together the programme. Everyone was invited. There were no institutional or professional distinctions: anybody could come and there would be enough panels so that every person who wanted to could be on a formal panel (incidentally allowing them to hit their deans up for travel money). And the panels would not be structured in a hierarchical way. This was unheard of in organising conferences at that time. Eventually the organisational impulse prevailed to the point where a formal organising committee came into existence, but it never did anything at all.

This reminds me of a discussion at one of the earliest informal meetings of interested people (I think at my house in Cambridge). There was a discussion about who we should ask to give an honorary address at the next conference. Rand Rosenblatt and Mark Tushnet suggested we ask Louis Althusser. So they tried to reach Althusser: they telephoned, they sent letters, they sent telegrams (which still existed) but they just could never get in touch with him. Why? Because, as we learned only a year or so later, Althusser the previous year had killed his wife and was in a mental hospital. We actually imaged that Althusser would come to the United States and address 70 or so young law professors and law students. So next we also tried to get Poulantzas. He wasn’t in a mental hospital but for some reason that didn’t work out. In the end we got Carl Boggs, an American sociologist who had written a well-known book about Gramsci. He wasn’t great because he made no effort to figure out what it was about. I wonder what the big A or the big P would have said.

CLS remained a diverse movement with various strands of thought. What was the most basic theoretical division in these early years?

Already in 1975, Morty Horwitz and I were arguing about a series of different methodological issues that had a lot of influence on the first stages of Critical Legal Studies at the intellectual level. Morty was allied with the Marxists around the basic idea of history as a totality which has both ideal and material elements and in which theoretical formations serve interests. In terms of law, legal thought—ways of conceptualising the legal order—and doctrinal complexes have a political valence. They come into existence as aspects of ruling class projects. There’s no requirement that it be highly conspiratorial or even highly conscious, but let’s face it, freedom of contract is the doctrine of the rulers of the economy, they’re the ones who believe in freedom of contract and freedom of contract in principle serves the interests of the ruling class.

This is Horwitz’s thesis in The Transformation of American Law.

Which came out exactly at this time. Our controversy was not about the concrete effects of the legal regime as a whole. What do these rules do? We agreed they distribute unequally and they’re an important element of an oppressive system, one that ought to be radically, structurally transformed. The question is rather about the role of ideologies and role of ideas and theories.

In Rise and Fall, I was all for the idea that specific interests through their lawyers work to develop law that favours them. In that sense the new doctrines that are constantly emerging ‘reflect’ the interests of those who promoted them. The question is whether this link is ‘essential’ or ‘necessary’. This was another way of asking whether the given doctrine or principle or concept was biased, or intrinsically ‘tilted’ toward the interests that promoted and benefitted from it.

My line, repeated at a dozen crit events, was that the problem was not bias but indeterminacy. In other words, interests exploited indeterminate law to promote their objectives, but the indeterminacy made it possible for conflicting interests to struggle to develop it in other directions. Fine, Morty would say. But then my final argument was that the very doctrines developed to promote, say, the ‘interests capital’ were themselves indeterminate, not ‘inherently’ biased. So they were available for counterattack and reconfiguration—freedom of contract was a contradictory doctrine, used by labour at the end of the 19th century as much as by capital. The labour versions failed not because of bias but because of power.

For Morty, the structure was the product of an overall configuration of interests. It comes into existence to serve the interests and it works. Its internal logic fits or tilts towards the interests. So the internal logic of Classical Legal Thought should be conservative and the internal logic of Social Legal Thought should be progressive. The idea is that the legal structural construction is made intelligible by its origin and its results: it comes in through the interests and it’s constituted as a thing, as an intellectual structure, which has consequences when operated.

The strongest version of the counter-attack, set out in ‘Form and Substance’ and subsequent articles, was that everything that Morty argued was intrinsically right-wing ideology was in other situations left-wing ideology. So it couldn’t be the ideology that was causing the outcomes. Now, he said we were depoliticising the whole thing through the indeterminacy thesis, while we argued no, we’re making it concrete rather than abstractly political.

How were these debates, and CLS more broadly, understood by the rest of the legal academy?

The main way to interpret a person in America who is saying ‘do something radical to change the status quo’ is to assume they are either communist or nihilist. One person says you’re a communist and another says you’re a nihilist. These are senior grown-ups who are older than we are, that feel they know how to interpret ideas, and whether we think we’re communists or Marxists or not makes no difference. They are doing the interpretive act and they have a set of categories for radical leftists: we don’t believe in law, we believe it is indeterminate; we also believe law is determined by class interests; we also believe the only way to deal with law is through violent revolution. But there is amazingly little actual encounter with what we wrote.

You returned to the subject of legal indeterminacy in another seminal CLS article, ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’, published in 1986.

From my point of view, it is the single most important theoretical contribution at the level of critical theory that I have made. It is also novelistic, just like Legal Education and the Reproduction of Hierarchy.

What was the motivation in writing it?

It was deeply influenced by another study group that I did with Alan Stone. For about four years we met every three or four weeks. First we read Being and Nothingness by Sartre and then we read the second part of The Phenomenology of Mind. The article, as it says at the beginning, is a direct attempt to marry Being and Nothingness to some canonical legal realist texts, but at the most philosophical level. It is methodologically phenomenological and deals with the question of the ‘is-ness’ of law and the meaning of freedom and constraint with respect to law. As far as I know, it was the first time that method had ever been applied to the specific question of law’s objectivity, long an obsession of legal theory and jurisprudence.

How does this methodological approach inform your theory of indeterminacy?

The central question is whether a legal result is ever compelled. Is indeterminacy a function of the legal materials? Is it correct to say some legal doctrines are determinate and some legal doctrines are not determinate? No. So the article is an attempt to formulate an indeterminacy theory that is not based on determinacy as a property of an exterior object, namely the relevant legal materials. The idea is that determinacy is an experience, not a property of the materials: it’s a result of an encounter between an interpreter with an agenda and materials understood as a partially resistant medium. Whether the result is determinate depends on what you try to do. If you can’t do what you want—your agenda—and you’re forced to do something else, it’s totally determinate. But the determinacy is not a property of the materials. You’re always under a time constraint, so it just means that when your time ran out there was no way out of the box. The materials seemed to determine the outcome, but we all have the experience that if you gave me another ten minutes I could come up with a different interpretation and conclusion.

The article attempts to give an elaborate, novelistic reproduction of the experience of something that appears to be completely determinate which, as the result of work and chance, and maybe something to do with the materials, suddenly turns into the opposite. Determinacy is an experience, but the dissolution of determinacy through work in time is equally an experience. That is, determinacy and indeterminacy are both experiences, but neither can be attributed to anything other than the totality of the encounter of an interpreter with skills and interpretive resources, an agenda, the materials, and other constraints. I see this as a radical ontology in the tradition of Hegel, Husserl and Sartre.

In the early 1990s you changed direction somewhat, engaging with the rise of identity politics in legal academia—critical race theory in ‘A Cultural Pluralist Case for Affirmative Action in Legal Academia’ and feminism in ‘Sexual Abuse, Sexy Dressing and the Eroticization of Domination’. This seems somewhat of a break from your earlier work.

It was certainly a break and it was supposed to be. Those two articles are directly my engagement with Critical Race Theory, in the case of ‘Affirmative Action’ and feminism, particularly radical feminism but also cultural feminism, in the case of ‘Sexy Dressing’. They were part of the political project of Critical Legal Studies, which as I saw it was to create an alliance both at the practical level and at the theoretical level with, and try to take seriously, these new identity political groups that are not just identity political: they’re also producing incredibly interesting theory. If you want to do serious politics in America in the late 80s and 90s, you have to engage with these movements. This is the agenda I set out in ‘Radical Intellectuals in American Culture and Politics’ and ‘Affirmative Action’ and ‘Sexy Dressing’ follow from that. All three are included in Sexy Dressing, etc.

Along with ‘The Stakes of Law, or Hale and Foucault!’ In that article you, drew on the work of Robert Hale and Michel Foucault to develop an analysis of law’s distributive effect—or, in your words, the role of law in the reproduction of social injustice in late capitalist societies. How does ‘Hale and Foucault’ fit into the rest of the book’s organisational scheme?

A basic idea of ‘Hale and Foucault’ was the significance of background legal rules that are generally regarded as invisible. For example, when people think about what determines the outcome of a distributive conflict, they tend to ignore the role of law. But it is law that sets the background rules of the conflict and conditions its outcome. The importance of background rules is a theme also of ‘Affirmative Action’ and ‘Sexy Dressing’. All the private law rules governing the genders, for instance, are treated as very significant factors.

In the last decade you’ve returned to your earlier work on Classical Legal Thought, extending the analysis forward in time first with ‘Two Globalizations of Law and Legal Thought’ and then further with ‘Three Globalizations of Law and Legal Thought’. Do you see this as a return to earlier interests?

Definitely, yes I do. But it combines all the earlier interests—really, all of them. For example, family law, sex and reproduction figure very significantly in the ‘Three Globalizations’ chapter. Sex, reproduction and family are almost never a major part of discussions of globalisation, except in the sense of advocacy, but here the idea was to apply the basic techniques and approaches of the earlier work to incorporate the sexual dimension into the big historical picture. So all the earlier interests are in there.

You lay out an incredibly dense description of three waves in the globalisation of legal thought, but there’s little, or even no, explanatory framework for why these ideational changes are occurring.

That’s what Morty Horwitz said about the Rise and Fall of Classical Legal Thought. And many other people have had similar reactions. All my historical work is immediately reacted to by people who are from what you might call the materialist tradition—not necessarily Marxists, but people who believe that there’s some basic sense in which reality leads theory. If you want to understand what happens in thought, look at what happens on the ground. Then there’s the more classic liberal criticism: my story isn’t adequately liberal because the stages are completely devoid of inner moral content. There’s no narrative of development or evolution that could be understood in any way as a progress narrative. So on the one hand there’s no underlying structure and on the other it’s a death of reason narrative.

My basic response to that is, it would be nice if there were a plausible totalisation of a story of material transformations with the story of thought. Be my guest. The ambition to do it that way, I think, is not bad. I myself understand the narrative as totally a narrative in which changes in consciousness are in relation to transformations in the base. Urbanisation and industrialisation are obviously what the Social is about. The Social is a reaction to those things. And, earlier, Classical Legal Thought is the framework of a particular moment in capitalist economic development. What’s missing is a logic that integrates the material and the ideal in the mode of either Hegel or Marx.

Tor Krever is a PhD candidate in law at the London School of Economics and a visiting research fellow at the Centre for Social Studies, University of Coimbra in Portugal. Carl Lisberger and Max Utzschneider are Harvard Law School graduates and practice law in California and New York respectively.